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Most construction claims are made up of sums that are in dispute and sums that are not. And generally, the party holding the undisputed sum is holding it for no reason other than to exert leverage. Under Florida construction lien law this need not be tolerated and collecting the undisputed portion of a construction claim is possible.
The Law Is On Your Side
The law states that any person who receives a payment for constructing or altering a permanent improvement to real property must pay, in accordance with the contract terms, the undisputed contract obligation. The failure to pay the undisputed obligation within 30 days after the date the labor, services or materials are furnished and payment for the same became due, shall entitle any person providing such labor, services or materials to certain remedies.
Here’s How It Works
The person not paid an undisputed amount must first file and serve a verified complaint alleging: the existence of a contract to improve real property; a description of the labor, services or materials provided; an allegation that the labor, services or materials were provided in accordance with the contract; the amount of the contract price; the amount, if any, paid pursuant to the contract; the amount that remains unpaid pursuant to the contract; the amount that is undisputed; that the undisputed amount has remained due and payable pursuant to the contract for more than 30 days after the date the labor or services were accepted or the materials were received; and that the person against whom the complaint was filed has received payment on account of the labor services or materials described in the complaint more than 30 days prior to the date the complaint was filed.
After service of the complaint, the court will conduct an evidentiary hearing on the complaint upon not less than 15 days written notice and will explore remedies such as a temporary injunction, prejudgment attachment and such relief as may be appropriate in accordance with the requirements of the law.
What Are You Waiting For
Collecting the undisputed portion of a construction claim is something you can do. The court must provide you a remedy without regard to whether or not irreparable damage has occurred or will occur. Of course, all this does not apply to the extent a bona fide dispute exists regarding any portion of the contract price or in the eventRead More
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A claim of lien may be recorded at any time during the progress of the work but never later than 90 days after last furnishing labor or materials. (Obtain your own Calc-u-Lien to be able to calculate these deadlines). A lien holder must also file separate claims of lien for work done under separate direct contracts between an owner and contractor. As an example, a contractor was required to file two claims of lien, one for construction work and then another for subsequent repair work, even though both the construction and repair work were done on the same structure. This was because the construction and then the repairs were performed under two distinct contracts.
Okay, you’ve recorded your lien within the required 90 days; now can you amend your claim of lien? Maybe, since this must be done during the period allowed for recording the original claim of lien and as long as (there always seems to be an “as long as” with these legal issues) the amendment does not cause someone relying on the original claim of lien to be impaired. So if you recorded your claim on the 90th day, you will be out of luck. Any amendment of the claim of lien must be recorded in the same manner as required for the recording of the original claim of lien.
All that said, be aware that amending a defective claim of lien does not necessarily render it enforceable. Because you will generally only have one opportunity to record and serve a claim of lien (too often filed quickly on the 89th or 90th day), be careful and get it right the first time.
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